Shamsuddin Ahmed, J. - (1.) These two applications are taken up together for hearing as they involve the same question of law. It appears that opposite party No. 1 filed a complaint before the learned Chief Metropolitan Magistrate, Calcutta, alleging that the petitioners have violated the provisions of Rule 10 read with Section 58A of the Companies Act, 1956, as they have failed to submit a return in terms of the provisions of Rule 10 of the Companies (Acceptance of Deposits) Rules, 1975. It was stated that under the provisions of the said Rules, they were 'required to file the return on or before 30th June, every year, with the complainant in prescribed forms furnishing the information contained therein. This failure to submit the return is punishable under Rule 11 of the said Rules. Rule 11 provides that if a company or any other person contravenes any of the provisions of these rules, the company and other officer of the company who was in default or such other person shall be punishable with fine which may extend to Rs. 500 and if the contravention is a continuing one, with a further fine which may extend to Rs. 50 for every day after the first during which the contravention continues. The complainant in the petition of complaint contended that since the alleged offence is an offence of continuing nature, cognisance is not barred by limitation in terms of Section 472 of the Criminal Procedure Code. In the petition of complaint, it was also alleged that till the time of filing the complaint, no return has been filed by the accused persons. The learned C.M.M., Calcutta, took cognisance and issued summons against the petitioners. The petitioners filed an application before the learned Magistrate that the cognisance was bad because it has been taken after the period of limitation has passed. By an order dated September 12, 1984, the learned Magistrate rejected the said application. It has been contended for the petitioners that the learned C.M.M. has erred in holding that Rule 11 of the Companies (Acceptance of Deposits) Rules, 1975, contemplates that the offence is committed from day-to-day or repeated from day-to-day and that is why punishment of fine is provided and accordingly he held the offence to be a continuing offence. It was also urged that Section 159 of the Companies Act contains similar provisions and this court has held that the offence punishable under Section 162 is not a continuing offence.
(2.) Mr. Bose, appearing for the petitioners, has relied on a decision in National Cotton Mills v. Assistant Registrar of Companies [1983] CHN 180 ; [1984] 56 Comp Cas 222 (Cal) . In that case, a prosecution was lodged against the petitioners under Section 162 of the Companies Act for violation of the provisions of Section 159 of the said Act. In terms of the provisions of Section 159, the due date for filing of the returns was 28th November of different years. All the complaints were filed beyond the period of limitation which was six months in that case. In the revisional application for quashing the proceedings, it was contended that the cognisance was bad because it was barred by limitation. The complainant contended that the offence was a continuing one and, therefore, not barred by limitation. The court held that Section 159 of the Companies Act does not impose any liability which continues. The offence of the breach is complete with the failure to furnish the return in the manner or within the time stipulated. The requirement of Section 159 was that every company is to file with the Registrar a return containing the particulars specified in the section within 60 days from the date on which the annual general meeting is held. The court held that the offence is complete once and for all when the date fixed by the said provisions expires. There was nothing to indicate that the offence survives even after the expiry of the date so fixed by the section itself. It also considered a decision of this court in Ajit Kumar Sarkar v. Assistant Registrar of Companies [1919] 49 Comp Cas 909 (Cal) ; 83 CWN 108 , which gave a contrary view. According to Mr. Bose, since the provisions of Rule 11 are identical to the provisions of Section 162, the learned Magistrate was not justified in holding that the offence alleged herein is a continuing offence.
(3.) Mr. Ghoshal, appearing for the opposite parties, has relied on the decision in State of Bihar v. Deokaran Nenshi, AIR 1973 Supreme Court 908 . In para 5 of the said decision, the court held that a continuing offence is one which is susceptible of continuance and is distinguishable from one which is committed once for all. In the case of a continuing offence, there must be the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all. Mr. Ghoshal has also relied on a decision in Bhagirath Kanoria v. State of M.P., AIR 1984 Supreme Court 1688 . In that case, the court held that nonpayment of the employer's contribution to the provident fund before the due date is a continuing offence and, therefore, the period of limitation prescribed by Section 468, Criminal Procedure Code, cannot have any application. The offence is governed by Section 472, according to which, a fresh period of limitation begins to run at every moment of time during which the offence continues. It laid down the principle that the question whether a particular offence is a continuing offence must necessarily depend upon the language of the statute which creates the offence, the nature of the offence and, above all, the purpose which is intended to be achieved by constituting the particular act as an offence. As the offence of failure to pay the employer's contributions before the due date was alleged, it has to be considered in the light of the object and purpose of the provisions which is to ensure the welfare of the workers. Under such circumstances, the court refused to hold that the failure to pay the employer's contribution to the provident fund by the specified 3 ate is an offence which was complete on the expiry of the said date. It held that the offence is a continuing one. In the said case, the court also observed "the hairsplitting argument as to whether the offence alleged against the appellants is of a continuing or non-continuing nature, could have been averted by holding that considering the object and purpose of the Act, the learned Magistrate ought to take cognisance of the offence after the expiry of the period of limitation, if any such period is applicable because the interest of justice so requires ". Mr. Ghoshal has also referred to a decision of the Kerala High Court reported in [1986] 59 Comp Cas 261 (Ker) (Sudarskan Chits (India) Limited v. Registrar of Companies ). In this decision, the Kerala High Court held that the failure to file the balance-sheet and profit and loss account of the company under Section 220 of the Companies Act, 1956, with the Registrar of Companies is a continuing offence under Section 162 of the Act, since the punishment provided in Section 162 is not imprisonment or fine up to a limit but fine which may extend to Rs. 50 for every day during which the default continues. The section makes it clear that the default or offence is not something which takes place once and for all but is one which continues. In arriving at this conclusion, the court considered the scheme of the provisions as contained in the Companies Act and concluded that the offence punishable under Section 162 of the Act is a continuing offence. Against this decision of the Kerala High Court, the Supreme Court was moved and the special leave to appeal was dismissed. Accordingly, Mr. Ghoshal contended that the Supreme Court has accepted the views of the Kerala High Court that the offence punishable under Section 162 of the Companies Act is a continuing offence. He urged that accordingly no reliance could be placed on the decision of this court in National Cotton Mills' case [1983] CHN 180 ; [1984] 56 Comp Cas 222 (Cal) referred to earlier.;